Susanta Kumar Tah, Hooghly V. ITO, Ward - 2(4), Burdwan

ITA 1372/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7985 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2010
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 10-08-2009
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : KOLKATA [BEFORE HONBLE SHRI G.D.AGRAWAL, SMT. DIVA SINGH, JM] I.T. A. NO. 1372/KOL/2009 ASSESSMENT YEAR 2005-06 SHRI SUSANTA KR.TAH -VS- I.T.O., WARD-2(4) HOOGHLY PAN:ABLPT 5765 H BURDWAN (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SOMNATH GHOSH RESPONDENT BY : SMT. JYOTI KUMARI O R D E R PER SMT. DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-ASANSOL DATED 28.05.2009 PERTAINING TO A.YR.2005-06 WHEREIN VARIOUS GROUNDS HAVE BEEN RAISED BY THE ASSESSEE AGAINST THE ADDITIONS UPHELD BY THE LD. CIT(A). VIDE GROUND NO.1 THE ASSESSEE HAS AGITATED AGAINST THE ACTION O F THE CIT(A)WHEREIN THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED ON THE GROUND OF LIMI TATION. 2. THE RELEVANT FACTS OF THE CASE AS ARE AVAILABLE IN THE IMPUGNED ORDER ARE THAT THE ASSESSMENT ORDER IN ASSESSEES CASE WAS PASSED ON 3 1.12.2007 AND AS PER FORM NO.35 THE ASSESSEE HAS STATED THAT THE ORDER WAS SERVED O N 11.01.2008. AGAINST THE ADDITIONS MADE THEREIN THE APPEAL WAS ADMITTEDLY FILED ON 31. 10.2008. THE APPEAL WAS LATE SINCE AS PER THE RULES IT OUGHT TO HAVE BEEN FILED BY 10. 02.2008. A PERUSAL OF THE IMPUGNED ORDER ALSO SHOWS THAT IN ORDER TO EXPLAIN THE DELAY OF MORE THAN 8 MONTHS THE ASSESSEE IS STATED TO HAVE FILED A PETITION FOR CONDONATION OF DELAY ALONG WITH FORM NO.35 ITSELF SETTING OUT THE REASONS ON ACCOUNT OF WHICH THE DEL AY HAS OCCURRED. 2.1. A PERUSAL OF THE IMPUGNED ORDER FURTHER SHOWS THAT THE REASONS AS DISCUSSED IN THE IMPUGNED ORDER ARE THAT THE MOTHER OF THE LD. A R SHRI S.K.HATI WAS STATED TO HAVE BEEN DIAGNOSED WITH ADVANCE STAGE OF ORAL CANCER IN THE MONTH OF DECEMBER, 2007 2 AND SHE FINALLY EXPIRED ON 22.05.2008. IN THE SAID BACKGROUND THE LD. CIT(A) WAS OF THE VIEW THAT IT WAS THE DUTY OF THE ASSESSEE TO EX PLAIN DAY-TO-DAY DELAY WHICH HE HAD FAILED TO EXPLAIN. HE WAS ALSO OF THE VIEW THAT EVE N IF THE ARGUMENTS THAT THE ARS MOTHER EXPIRED ON 22.05.2008CAN BE ACCEPTED. IN THE SAID BACKGROUND THERE WAS STILL A DELAY OF 5 MONTHS AS SUCH THE REQUEST FOR CONDONATI ON WAS REJECTED. CONSEQUENTLY THE ADDITIONS MADE IN THE ASSESSMENT ORDER STOOD CONFI RMED. 2.2. AGGRIEVED BY THIS THE ASSESSEE IS IN APPEAL BE FORE THE TRIBUNAL. 2.3. ATTENTION WAS INVITED BY THE LD. AR OF THE ASS ESSEE TO PAGES 6 TO 7 OF THE PAPER BOOK WHICH CONTAINS THE CONDONATION OF DELAY PETITI ON. REFERRING TO PARA 4 OF THE SAID PETITION IT WAS SUBMITTED BY THE LD. AR THAT IN THE MONTH OF DECEMBER, 2007 THE MOTHER OF SHRI SANJIT KUMAR HAITI, THE LD. AR WAS D IAGNOSED WITH ADVANCE STAGE OF ORAL CANCER. ACCORDINGLY THE SAID ADVOCATE WHO WAS FULLY OCCUPIED IN CONSTANT CARE OF THE AILING MOTHER AS SHE NEEDED MEDIAL ATTENTION AL MOST 24 HOURS DID NOT FILE THE APPEAL AS PER INSTRUCTIONS RECEIVED BY HIM. IT WAS EMPHASIZED BY THE LD. AR THAT THE SAID ADVOCATE HAD ALREADY LOST HIS FATHER A FEW MON THS AGO I.E. ON 9.4.2007. AS SUCH THE ENTIRE RESPONSIBILITY OF THE MOTHERS HEALTH FE LL ON HIM. REFERRING TO THE SAID PARA IT WAS EMPHASIZED BY THE LD. AR THAT IN THE PETITION B EFORE THE LD. CIT(A) IT WAS POINTED OUT THAT THE MOTHER OF THE SAID ADVOCATE HAD AN OPE RATION FOR REMOVAL OF THE CANCER CELLS FROM HER MANDIVAL REGION ON 05.01.2008 AND TH EREAFTER SHE NEEDED RADIATION THERAPY AND MEDICAL ATTENTION ON ACCOUNT OF WHICH T HE SAID ADVOCATE MR.HAITI HAD TO RUN HELTER SKELTER TO ATTEND TO THE MEDICAL NEEDS O F THE MOTHER. REFERRING TO THE SAID PARA IT WAS POINTED OUT THAT UNFORTUNATELY THE SAID ADVOCATE LOST HIS MOTHER ON 22.05.2008. REFERRING TO THE SUBSEQUENT PARAS OF TH E SAID PETITION IT WAS SUBMITTED BY THE LD. AR THAT THE ASSESSEE HAD AGITATED THAT THE SAID ADVOCATE WAS IN A STATE OF SHOCK ON ACCOUNT OF THE FACT THAT WITHIN A SPAN OF A YEAR HE HAD LOST HIS PARENTS AS SUCH HE HAD TO BE TREATED BY A PSYCHIATRIST AND HE COULD AT TAIN NORMALITY ONLY AFTER A PASSAGE OF TIME. IN THE CIRCUMSTANCES ON DISCOVERY THAT THE AD VOCATE HAD NOT CARRIED OUT THE INSTRUCTIONS FOR FILING THE APPEAL AGAINST THE IMPU GNED ORDER. IT WAS SUBMITTED THAT THIS 3 DISCOVERY CAME AS A BOLT FROM THE BLUE. REFERRING T O THE PARAS IN THE CONDONATION OF DELAY PETITION FILED BEFORE THE CIT(A) IT WAS POINT ED OUT BY THE LD. AR THAT THE ADVOCATE SHRI S.K.HAITI ACCEPTED THE MISTAKE COMMIT TED ON HIS PART. INVITING ATTENTION TO PARA 8 IT WAS HIS SUBMISSION THAT THE ASSESSEE H AD BONAFIDELY INSTRUCTED THE SAID ADVOCATE TO FILE THE APPEAL IN DUE TIME WHICH DUE T O THE REASONS STATED IN THE EARLIER PARAS COULD NOT BE DONE. AS SUCH IT WAS PRAYED THAT THE DELAY MAY BE CONDONED. 2.4. IN THE CIRCUMSTANCES IT WAS SUBMITTED THAT ON THE DISCOVERY OF THE MISTAKE THE ASSESSEE INSTRUCTED ANOTHER COUNSEL TO FILE THE APP EAL IMMEDIATELY WHICH HAD BEEN DONE. AS PER PARA 10 IT WAS SUBMITTED THAT NO BENEF IT HAS ACCRUED TO THE ASSESSEE BY WAY OF LODGING THE APPEAL LATE AND IN THE FACTS OF THE CASE THE ASSESSEE WAS PREVENTED BY A SUFFICIENT CAUSE TO FILE THE APPEAL ON TIME. I T WAS FURTHER SUBMITTED THAT THERE WAS NO NEGLIGENCE OR MALAFIDE ON THE PART OF THE ASSESS EE. ACCORDINGLY IT WAS REQUESTED THAT THE CONSEQUENCE OF THE STATE OF AFFAIRS OF SHR I SANJIT KUMAR HAITI SHOULD NOT BE VISITED UPON THE ASSESSEE. AS SUCH IT WAS PRAYED T HAT IN THE INTEREST OF JUSTICE THE DELAY MAY BE CONDONED. 2.5. THEREAFTER INVITING ATTENTION TO PAGE 9 OF THE PAPER BOOK IT WAS SUBMITTED THAT THE ASSESSEE ON 30 TH APRIL, 2009 SUPPORTED THE APPLICATION FOR CONDONAT ION OF DELAY PETITION BY AN AFFIDAVIT FILED BY SHRI S.K.HAITI TH E CONCERNED ADVOCATE. THE SAME IT WAS STATED IS PLACED AT PAGES 10 TO 12 OF THE PAPER BOOK. INVITING ATTENTION TO THE SAID AFFIDAVIT IT WAS EMPHASIZED BY THE LD. AR THAT THE SAID ADVOCATE ACCEPTED THE FACTS AS NARRATED IN THE CONDONATION OF DELAY PETITION. THE ADVOCATE AS PER THE AFFIDAVIT IT WAS SUBMITTED AFFIRMED THAT THE ASSESSEE WAS ONE OF THE VERY OLD CLIENTS AND ON ACCOUNT OF A SERIES OF TROUBLES VISITED UPON HIS FAMILY I.E. U NTIMELY DEMISE OF HIS FATHER AND SECONDLY PROLONGED TREATMENT AND THEREAFTER DEMISE OF HIS MOTHER, THE WORK OF THE ASSESSEE COULD NOT BE ATTENDED TO. THE CONCERNED AD VOCATE ADMITS THAT HE WAS IN A STATE OF SHOCK. IT WAS EMPHASISED THAT HE ADMITS HA VING RECEIVED INSTRUCTIONS TO FILE THE APPEAL FROM THE ASSESSEE ON 20.01.2008. HOWEVER , DUE TO THE FAMILY TRAGEDIES THE 4 ADVOCATE ADMITS HE FAILED TO DISCHARGE THE RESPONSI BILITY ENTRUSTED UPON HIM. IT WAS FURTHER POINTED OUT BY THE LD. AR THAT THE ADVOCATE MR.S.K.HAITI ADMITS THAT ON ACCOUNT OF THE TRAGEDIES VISITED UPON HIM HE REQUIR ED TO TAKE PSYCHIATRIC TREATMENT AND BEING A VICTIM OF CIRCUMSTANCES IT WAS ADMITTED THA T THE DELAY HAD OCCURRED. IN THE CIRCUMSTANCES A PRAYER WAS MADE THAT THE DELAY DESE RVES TO BE CONDONED AND THE ASSESSEES APPEAL SHOULD BE HEARD AND DECIDED ON ME RITS. 3. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE I MPUGNED ORDER. HOWEVER THE CONTENTS OF THE AFFIDAVIT WERE NOT CONTROVERTED BY HER. HER SUBMISSION WAS THAT EVEN IF THE DELAY IS CONSIDERED TO BE EXPLAINED UPTO MAY, 2 008, I.E. THE MONTH IN WHICH THE CONCERNED ADVOCATE LOST HIS MOTHER EVEN THEN THE AS SESSEE HAS FILED THE APPEAL IN THE MONTH OF OCTOBER, 2008 AS SUCH IT CANNOT BE SAID TO BE FULLY EXPLAINED. IN THE CIRCUMSTANCES IT WAS HER SUBMISSION THAT THE APPEAL HAS RIGHTLY BEEN DISMISSED ON THE GROUND OF LIMITATION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME IN T HE LIGHT OF THE DOCUMENTS TAKEN INTO CONSIDERATION BY THE LD. CIT(A) WHICH HAVE BEEN PLA CED BY WAY OF THE PAPER BOOK BEFORE US WE ARE OF THE CONSIDERED VIEW THAT IT IS A FIT CASE WHERE THE DELAY DESERVES TO BE CONDONED. IT IS SEEN THAT ADMITTEDLY ON THE PART OF THE ASSESSEE THERE WAS NO NEGLIGENCE THERE IS NO MATERIAL ON RECORD TO SUGGES T SUCH AN INFERENCE. ON THE CONTRARY IT IS SEEN THAT THE ASSESSEE AS PER THE UNCONTROVER TED DOCUMENTS ON RECORD HAD IN DUE DILIGENCE TAKEN CARE TO INSTRUCT HIS ADVOCATE DULY AND PROMPTLY IN THE MONTH OF JANUARY, 2008 ITSELF. HOWEVER, DUE TO THE IMPENDING TREATMENT IMMEDIATELY FOLLOWING THE SURGERY AND THEREAFTER RADIATION TREATMENT ETC OF HIS MOTHER THE ADVOCATE CAN BE SAID TO REMAIN PREOCCUPIED. THE FACT THAT ULTIMATE LY HIS MOTHER PASSED AWAY IN THE MONTH OF APRIL, 2007 AND SUBSEQUENTLY PSYCHIATRIC T REATMENT HAD TO BE GIVEN FOR RECOVERY FROM THE SHOCK TO MR.HAITI WHICH IS SUPPOR TED NOT ONLY BY THE CONDONATION OF DELAY PETITION BUT ALSO THE AFFIDAVIT OF MR.S.K. HAITI. THE SAME REMAINS UNCONTROVERTED. IT IS FURTHER SEEN THAT NO BENEFIT HAS ACCRUED TO THE ASSESSEE BY WAY OF LATE OF FILING OF APPEAL AND NO PREJUDICE IS CAUSED TO THE REVENUE IF THE DELAY IS 5 CONDONED AND THE ADDITIONS AGITATED ARE DECIDED ON MERIT INSTEAD OF THROWING OUT A LITITGANT ON TECHNICAL GROUNDS. WE ARE OF THE VIEW THAT THE EXPLANATION OFFERED BY THE ASSESSEE IN THE FACE OF DOCUMENTS AND MATERIAL ON R ECORD CAN BE CONSIDERED TO BE BONA FIDE AND GENUINE AS SUCH DESERVES TO BE ACCEPTED. 4.1. ACCORDINGLY IN THE LIGHT OF PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE WHICH WE HAVE DISCUSSED AT LENGTH WE ARE OF THE VIEW THAT FOR THE REASONS GIVEN HEREINABOVE THE DELAY DESERVES TO BE CONDONED. 4.2. ACCORDINGLY THE LD. CIT(A) IS DIRECTED TO DECI DE THE APPEAL OF THE ASSESSEE ON MERITS. NEEDLESS TO SAY THE LD. CIT(A) SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE GROUNDS AGITATED BEFORE HIM AFTER AFFORD ING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 12.02.2010. SD/- SD/- (G.D.AGRAWAL) (DIVA SINGH) VICE PRESIDENT JUDICIAL MEMB ER DATED : 12.02.2010. COPY OF THE ORDER IS FORWARDED TO :- 1) SHRI SUSANTA KUMAR TAH, C/O ADVOCATE SHRI SOMNATH G HOSH, SEVEN BROTHERS LODGE, P.O.BUROSHIBTALA, P.S.CHINSURAH, DIST. HOOGHLY. PIN -712105. 2) I.T.O., WARD-2(4),BURDWAN 3) CIT (A)-ASANSOL (4) CIT - KOLKATA. 5) D. R., I.T.A.T., KOLKATA. (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, (RG) I.T.A.T., KOLKATA.